869 F.

2d 776

Manuel GONZALES, Petitioner,

v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION
PROGRAMS, U.S.
DEPARTMENT OF LABOR.
No. 88-3559.

United States Court of Appeals,

Third Circuit.
Argued Jan. 31, 1989.
Decided March 13, 1989.

Maureen Hogan Krueger (argued), Meadowbrook, Pa., for petitioner.

George R. Salem, Solicitor of Labor, Donald R. Shire, Associate Sol.,
Barbara J. Johnson, Appellate Litigation Counsel, Rodger S. Pitcairn
(argued), U.S. Dept. of Labor, Washington, D.C., for respondent.
Before HUTCHINSON, SCIRICA and NYGAARD, Circuit Judges.
OPINION OF THE COURT
NYGAARD, Circuit Judge.

Manuel Gonzales petitions this court for review of a decision of the Benefits
Review Board (BRB) denying him benefits under the Black Lung Benefits Act,
30 U.S.C. Secs. 901-945. The sole issue on appeal is whether respondent
Director has successfully rebutted an interim presumption that Gonzales was
totally disabled due to pneumoconiosis. The BRB affirmed a finding by the
Administrative Law Judge (ALJ) that the Director rebutted the presumption of
total disability with evidence that Gonzales was able to perform his usual coal
mining employment. The proof consisted of a general conclusion by a single
physician that Gonzales suffered no impairments from the disease. Since the
physician reached this conclusion without any consideration of Gonzales' prior
coal mining work, we hold that the Director did not present substantial evidence
to rebut the presumption of total disability. Accordingly, we reverse the order

of the BRB.
I.
2

Gonzales filed his petition for federal black lung benefits in 1979. After the
claim was administratively rejected by the Department of Labor, the matter was
referred to an ALJ for a formal hearing in 1984. The Director did not contest
whether Gonzales had pneumoconiosis; instead he challenged Gonzales'
assertions relating to the length of his coal mine employment, the causal
relationship between his coal mine employment and his pneumoconiosis, his
total disability and the relation of his disability to the presence of
pneumoconiosis. Form CM-1025, April 6, 1984, Appendix at 37a-38a. The
hearing took place in July, 1986. At the hearing Gonzales established that he
had worked in the mines for at least ten years. That finding, combined with the
Director's concession that Gonzales was suffering from pneumoconiosis,
invoked the interim presumption of total disability. 20 C.F.R. Sec. 727.203(a)
(1). The inquiry then shifted to the issue of whether the interim presumption
was rebutted by evidence that Gonzales was capable of performing his usual
coal mine work. 20 C.F.R. Sec. 727.203(b)(2).

Gonzales testified that in the period between 1946 and 1957 his job was to push
a buggy loaded with coal along a track about three hundred feet long to a slope
where the buggy was hooked onto a cable and taken out to the surface. One
other person helped him to push the cars, which Gonzales estimated weighed
about one thousand pounds. He also stated that he spent seven to eight hours
per day performing this task. Transcript of Hearing, 7/8/86, Appendix at 43a44a.

Both sides presented medical evidence concerning whether Gonzales was

totally disabled. Gonzales relied on a report by Dr. Raymond Kraynak dated
June 16, 1986 in which Dr. Kraynak concluded that Gonzales was totally
disabled, stating that "[h]e is unable to lift or carry, climb steps or walk for any
period of time. He must be able to sit, stand, and lay down at his leisure,
secondary to his severe respiratory problems." Appendix at 35a. The Director
based his rebuttal evidence on a report prepared by Dr. Robin Kaplan on June
5, 1986. Dr. Kaplan disputed the finding that Gonzales suffered from
pneumoconiosis. He concluded that Gonzales suffered "no respiratory
impairment", that there were "no limitations" which would prevent him from
performing his last coal mining duties, and that Gonzales suffered no other nonrespiratory impairments. Appendix at 25a-26a. In answering the questions on
the questionnaire accompanying the Department of Labor's medical
examination form, Dr. Kaplan did not indicate that he was aware of Gonzales'

coal mining duties, nor did he state any underlying facts to support his
conclusions. He stated in the report that Gonzales was capable of walking a
distance of one mile, that he could climb ten stairs and that he could lift and
carry weights ranging from twenty-five to fifty pounds a distance of ten feet.
Appendix at 23a.
5

On October 31, 1986, the ALJ issued a Decision and Order rejecting Gonzales'
claim. The ALJ determined that Dr. Kaplan's report was sufficient to rebut the
interim presumption. She noted that Dr. Kaplan, as a registered pulmonary
specialist, was better qualified than Dr. Kraynak, a general practitioner, to
render a reasoned opinion concerning Gonzales' ability to perform his normal
coal mine work. Appendix at 4a. She also rejected Dr. Kraynak's report as
unpersuasive since it raised doubts regarding "the medical acceptability and
reliability of the documentation on which Dr. Kraynak based his opinion." Id.
The ALJ did not discuss Gonzales' normal coal mine work, nor whether he was
still able to perform that particular type of work.

Gonzales appealed the Decision and Order of the ALJ to the BRB. The BRB
affirmed, noting in its opinion that the ALJ did not err when she failed to
analyze the specific requirements of Gonzales' coal mine work: "Because Dr.
Kaplan concluded that claimant suffers from no limitations or impairment, a
comparison of the exertional requirements of claimant's usual coal mine
employment was not required to assess the sufficiency of Dr. Kaplan's report
under subsection (b)(2)." Appendix at 5a, (citation omitted). This timely
petition for review followed. We have jurisdiction pursuant to 33 U.S.C. Sec.
921(c) and 30 U.S.C. Sec. 932(a).

II.
7

Gonzales argues that the ALJ and the BRB erred in relying on the report of Dr.
Kaplan to rebut the interim presumption of total disability. He claims that a
statement of "no impairment" in Dr. Kaplan's report is insufficient to rebut the
presumption since it does not consider the nature of his normal coal mine work.
He further contends that Dr. Kaplan's conclusions regarding Gonzales'
functional capacities do not satisfy the Director's obligation to show that the
claimant is capable of performing his normal coal mine work or comparable
work. The Director takes the position that the finding of no impairments
logically compels the conclusion that Gonzales is capable of performing his
normal coal mine work.

Our review of the decision of the BRB is limited to a determination as to

whether an error of law has been committed and whether the BRB has adhered

to the statutory standard of review. Hillibush v. U.S. Department of Labor,

Benefits Review Board, 853 F.2d 197, 202 (3d Cir.1988). The factual findings
of the ALJ are binding if they are supported by substantial evidence in the
record considered as a whole. Kertesz v. Crescent Hills Coal Co., 788 F.2d 158,
163 (3d Cir.1986); 33 U.S.C. Sec. 921(b)(3). Substantial evidence is defined as
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Id. "Since the Black Lung Act should be liberally
construed to assure widespread benefits to miners disabled by black lung
disease, 'the party opposing an award of benefits must point to persuasive
evidence' to rebut an interim presumption of disability." Kertesz, 788 F.2d at
163, citing Pavesi v. Director, Office of Workers Programs, 758 F.2d 956, 96465 (3d Cir.1985).
9

The regulations promulgated by the Department of Labor provide that once the
interim presumption of total disability has been established, the Director may
rebut the presumption with proof under one of the four criteria set forth in 20
C.F.R. Sec. 727.203(b). Here, the Director relied on subsection (b)(2), which
provides:

10 Rebuttal of interim presumption. In adjudicating a claim under this subpart, all

(b)
relevant medical evidence shall be considered. The presumption in paragraph (a) of
this section shall be rebutted if:
....
11
12 In light of all relevant evidence it is established that the individual is able to do
(2)
his usual coal mine work or comparable and gainful work (see Sec. 410.412(a)(1) of
this title)
....
13
14

In Oravitz v. Director, Office of Workers' Compensation Programs, 843 F.2d

738 (3d Cir.1988), this court considered the quality of evidence necessary to
successfully rebut the presumption of total disability under subsection (b)(2).
There, the court found that the Director had not rebutted the interim
presumption with medical evidence that Oravitz was not suffering from any
respiratory impairment due to pneumoconiosis, and reversed an ALJ and BRB
decision which held that the finding of "no respiratory impairment" was
sufficient proof that Oravitz was able to perform his usual coal mine work. We
concluded that the evidence permissible under subsection (b)(2) "is limited to
proof demonstrating that the miner is suited for employment in the mines or a
comparable position. The ALJ's examination of non-qualifying medical
evidence to support a subsection (b)(2) rebuttal was error. This evidence is not

probative on the issue of whether the miner can perform the heavy labor of a
coal miner". Id. at 740. Similarly, in Sykes v. Director, Office of Workers'
Compensation Programs, 812 F.2d 890 (4th Cir.1987), the Fourth Circuit Court
of Appeals also stated its disapproval of a general finding of "no impairment" to
support rebuttal under subsection (b)(2):
15mere finding of "no impairment" under the American Medical Association
A
standards cannot be equated with a finding that a claimant can continue to perform
coal mining work.... At the least, for an employer to rebut the interim presumption
under Sec. 727.203(b)(2), consideration should be given to the health requirements
for work comparable to that performed by the claimant. The plain words of the
regulation mandate such consideration.
16

Sykes, 812 F.2d at 893 (citation omitted).

17

Here, we have no indication that Dr. Kaplan either knew of or considered the
exertional requirements of Gonzales' last coal mine work, which consisted of
pushing loaded coal cars weighing approximately one thousand pounds.1 Thus,
Dr. Kaplan's conclusions regarding Gonzales' ability to walk a distance of one
mile, climb ten stairs and carry a twenty-five pound weight a distance of ten
feet are hardly probative of whether Gonzales can perform "the heavy labor of a
coal miner". Oravitz, 843 F.2d at 740. This evidence is inadequate to establish
that Gonzales is capable of performing his normal coal mine work, and actually
may be more probative of a finding that Gonzales is totally disabled, since he is
limited to performing the functions listed in Dr. Kaplan's report.

18

The Director seeks to distinguish Oravitz, Sykes and other cases which have
held that a physician's opinion that a claimant suffers no impairment is not
sufficient to rebut the interim presumption under subsection (b)(2). See e.g.
Wright v. Island Creek Coal Co., 824 F.2d 505, 508 (6th Cir.1987); Adkins v.
U.S. Department of Labor, Office of Workers' Compensation, 824 F.2d 287,
290 (4th Cir.1987). He argues that these cases only hold that a finding of "no
respiratory impairments" is insufficient to rebut the presumption, while here,
Dr. Kaplan found that Gonzales suffered "no impairments whatsoever". (Brief
for Respondent at 12). This distinction is irrelevant to a determination of
whether Gonzales is capable of performing his normal coal mine duties. The
above cases reflect a concern that the rebuttal evidence be addressed "to the
physical demands placed on a claimant by his work." Adkins, 824 F.2d at 290.
Thus, a general conclusion of "no respiratory impairment" or "no impairment
whatsoever" does not satisfy the plain language of subsection (b)(2).2

19

Because the Director did not rebut the interim presumption with substantial

evidence that Gonzales was capable of performing his normal coal mine work,
we will reverse the order of the Benefits Review Board, and remand the case so
that benefits may be awarded from the appropriate commencement date.

The Director argues that Dr. Kaplan did in fact consider Gonzales' normal coal
mine work when he completed his report. The record does not support this
allegation. The section in the report dealing with Gonzales' employment history
only gives a cursory summary of his work requirements, with no reference to
the amount of weight that he was required to push. Appendix 21a. Those details
were provided by Gonzales when he testified at the hearing some four weeks
after the completion of the report. Appendix 42a-43a

Gonzales also contends that Dr. Kaplan's report is not substantial rebuttal
evidence under subsection (b)(2) since the report ignored medical test results
which indicated the presence of pneumoconiosis. Because of our disposition, it
is not necessary to address this issue